Each of the Centre’s objections to Justice Joseph fails to persuade

Why is the government trying to scuttle a Collegium recommendation for Supreme Court judgeship?

The events of the last few days and months have left observers and well-wishers of the Indian Supreme Court sorely troubled. These happenings cannot be viewed as isolated incidents, but rather as a set of events cumulatively reflecting, but also contributing to, the deterioration of public trust enjoyed by the Court.

The public manifestation of the malaise probably commenced with the judges’ press conference in January. Whatever may have happened outside of the public view, a Chief Justice who has lost the confidence of his four senior-most colleagues, and to the extent that they step out of the insulation that judges are ordinarily accustomed to, could be questioned over his ability to address the issues being raised. It is in this larger context of a divided and weakened Supreme Court that we must examine the Centre seeking reconsideration of Justice KM Joseph’s proposed elevation to the court.

Others have parsed the Centre’s elaborate rationalisations in greater detail. But the central points are still worth reiterating. Justice Joseph has been a High Court Chief Justice for nearly four years. Given that judges of High Courts have occasionally been elevated to the Supreme Court even before becoming Chief Justice of a High Court, a seniority-based objection to Justice Joseph is not only unpersuasive, but positively disingenuous.

The Kerala High Court already has a Judge on the court, the Centre adds. Apart from the fact that this is neither unprecedented nor particularly disconcerting, this response conveniently omits the material fact that the Judge in question will demit office before the end of this year.

No Judges on the court from the Scheduled Caste or Scheduled Tribe communities, the Law Minister informs the Collegium. Troubling indeed, and something warranting careful and sustained attention. But hardly something unique to Justice Joseph’s case, or more relevant to his situation than to that of the recently elevated Justice Malhotra.

And so each of the Centre’s objections to Justice Joseph fails to persuade. And this would be sufficient to question the government’s actions even if one were to ignore the circumstances pertaining to Justice Joseph’s judgment striking down the imposition of President’s Rule in Uttarakhand.

Appointments to the Supreme Court obviously weigh a large number of factors, some of which are intangible but immensely significant. Seniority is one, but not the only one.Judicial competence, integrity, temperament, seniority, diversity from varied perspectives — all these factors are inevitably considered by the Collegium for any appointment, not just this one. Accordingly, let’s recognise what’s really happening. The point is not that the Collegium is infallible. Rather, at a moment of institutional weakness, a government has stepped in with objections of a kind that have never been raised in similar situations in recent years. Res ipsa loquitur as we lawyers might say — the thing speaks for itself.

Constitutional scholars and jurists have long recognised that, in a State governed by the separation of powers, tension between the executive and judiciary is inevitable and oftentimes even beneficial. Push and pull between these two vital organs of the State can, in dialectical fashion, produce better outcomes than if either were acting entirely of its own volition. But such creative tension is of an entirely different character. It concerns not individuals but ideas, and is premised on the fundamental acceptance that each institution is acting in good faith, if sometimes mistakenly. The government’s pushback here is designed not to reason but to obfuscate, and is therefore profoundly harmful to our constitutional democracy.

One could say that the Collegium has itself to blame, for providing over the years the scantiest of reasoning or justification for its choices and decisions. But that is something that has happened over the decades, and there is much blame to go around. In the here and now, we see a government, for the second time in its term, trying its very best to scuttle a Collegium recommendation for Supreme Court judgeship. Its grounds are those of a nimble lawyer arguing a decidedly weak brief. The country, and the court, deserve much better.

Rishad A Chowdhury is an advocate-on-record at the Supreme Court and partner, Verus.